REPORT TITLE:
Subpoenas


DESCRIPTION:
Permits use of an administrative subpoena issued by the attorney
general or trial subpoena to obtain records or other information
pertaining to a subscriber or customer of a provider of
electronic communications or remote computing services.
Clarifies information to be obtained.  Makes housekeeping
amendments to sections 323C-38 and 622-52, Hawaii Revised
Statues, relating to subpoenas of health care information.(SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1491
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 2000                                S.D. 1
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO SUBPOENAS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1                              Part I.
 
 2      SECTION 1.  Section 803-47.6, Hawaii Revised Statutes, is 
 
 3 amended by amending subsection (d) to read as follows:
 
 4      "(d) (1)  A provider of electronic communication or remote
 
 5           computing services may disclose a record or other
 
 6           information pertaining to a subscriber or customer of
 
 7           such service (other than the contents of any electronic
 
 8           communication) to any person other than a governmental
 
 9           entity.
 
10      (2)  A provider of electronic communication or remote
 
11           computing services shall disclose a record or other
 
12           information pertaining to a subscriber or customer of
 
13           such service (other than the contents of an electronic
 
14           communication) to a governmental entity only when:
 
15          [(A)  Presented with a grand jury subpoena;
 
16           (B)] (A)  Presented with a search warrant;
 
17          [(C)] (B)  Presented with a court order for such
 
18                disclosure; [or
 
19           (D)] (C)  The consent of the subscriber or customer to
 
20                such disclosure has been obtained[.]; or
 

 
Page 2                                                     1491
                                     H.B. NO.           H.D. 1
                                                        S.D. 1
                                                        

 
 1           (D)  Presented with an administrative subpoena issued
 
 2                pursuant to section 28-2.5 or a grand jury or
 
 3                trial subpoena, which seeks the disclosure of
 
 4                information concerning electronic communication,
 
 5                including but not limited to the name, address,
 
 6                local and long distance telephone toll billing
 
 7                records, telephone number or other subscriber
 
 8                number or identity, length of service of a
 
 9                subscriber to or customer of the service, and the
 
10                types of service utilized by the subscriber or
 
11                customer.
 
12      (3)  A governmental entity receiving records or information
 
13           under this subsection is not required to provide notice
 
14           to a subscriber or customer."
 
15                             Part II.
 
16      SECTION 2.  Section 323C-38, Hawaii Revised Statutes, is
 
17 amended by amending subsection (c) to read as follows:
 
18      "(c)  This section shall not apply in a case in which the
 
19 protected health information sought under the discovery request
 
20 or subpoena is:
 
21      (1)  Nonidentifiable health information; [and] or
 
22      (2)  Related to a party to the litigation whose medical
 
23           condition is at issue."
 

 
Page 3                                                     1491
                                     H.B. NO.           H.D. 1
                                                        S.D. 1
                                                        

 
 1      SECTION 3.  Act 87, Session Laws of Hawaii 1999, section 4,
 
 2 is amended by amending subsection (a) to read as follows:
 
 3      "SECTION 4.  Section 622-52, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      622-52  Subpoena duces tecum for medical records,
 
 6 compliance.   (a)  [Whenever a subpoena duces tecum is served
 
 7 upon the custodian of medical records or other qualified witness
 
 8 from a medical facility, in an action or other proceeding on a
 
 9 claim for personal injuries in which the custodian or the
 
10 custodian's employer is neither a party to the action or
 
11 proceeding nor is it alleged that the claim arose at the medical
 
12 facility, and such subpoena requires the production in court, or
 
13 before an officer, board, commission, or tribunal, of all or any
 
14 part of the medical records of a patient who is or has been cared
 
15 for or treated at the medical facility, it shall be sufficient
 
16 compliance therewith if the custodian or other qualified witness
 
17 within five days after receipt of such subpoena, delivers by
 
18 registered or certified mail or by messenger a true and correct
 
19 copy (which may be by any method described in rule 1001(4),
 
20 Hawaii rules of evidence) of all the medical records described in
 
21 such subpoena to the clerk of the court or the clerk's deputy
 
22 authorized to issue it, together with the affidavit described in
 
23 section 622-53.]  Except as provided by section 323C-38(c), [A] a
 

 
Page 4                                                     1491
                                     H.B. NO.           H.D. 1
                                                        S.D. 1
                                                        

 
 1 subpoena duces tecum or discovery request for protected health
 
 2 information is valid only if accompanied by either a court order,
 
 3 or a written authorization signed in accordance with section
 
 4 323C-23.  An order issued under this section shall:
 
 5      (1)  Provide that the protected health information involved
 
 6           is subject to court protection;
 
 7      (2)  Specify to whom the information may be disclosed;
 
 8      (3)  Specify that the information may not be disclosed or
 
 9           used except as provided in the order; and
 
10      (4)  Meet any other requirements that the court determines
 
11           are needed to protect the confidentiality of the
 
12           information.""
 
13                             Part III.
 
14      SECTION 4.  Statutory material to be repealed is bracketed.
 
15 New statutory material is underscored.
 
16      SECTION 5.  This Act shall take effect upon its approval;
 
17 provided that Part II of this Act shall take effect on July 1,
 
18 2000.